Can claim of secret ‘nass’ stand in absence of witnesses, asks HC
However, on the instructions of the Dai, he did not disclose it to anyone. Desai referred to an evidentiary document wherein it was stated that the other brothers would be disgruntled and as they might react violently, he was told to keep it under wraps
Mumbai: The Bombay high court on Wednesday sought to know from Syedna Taher Fakhruddin how he was justifying the late Syedna Khuzaima Qutbuddin’s claim that he was conferred nass by the 52nd Dai, Syedna Mohammad Burhanuddin, in the absence of a direct corroboration by any witness.
Justice Gautam Patel also asked senior counsel Anand Desai, representing Syedna Fakhruddin, to explain whether the sole statement of Syedna Qutbuddin was accepted in the Dawoodi Bohra community as proof of his succession in light of statements made by witnesses during the trial that it depended on a case-to-case basis. The bench has asked Desai to deal with the issue of witnesses in detail on Thursday.
On Wednesday, Desai dealt with the factual aspect of the claim of nass being conferred upon Syedna Qutbuddin. The counsel informed the bench that as per the statement of Syedna Qutbuddin, he had been called to the private chamber of the 52nd Dai on December 10, 1965, wherein he was told that he would be named the maazoon (second in command) later in the day during a sermon in Saifee Masjid. The 52nd Dai had then bestowed on him a ring which belonged to the 51st Dai.
This act, according to Syedna Qutbuddin, was sufficient for him to assume that he was going to be the successor. However, on the instructions of the Dai, he did not disclose it to anyone. Desai referred to an evidentiary document wherein it was stated that the other brothers would be disgruntled and as they might react violently, he was told to keep it under wraps.
The bench was then informed that in a sermon later in the day, Syedna Burhanuddin announced that Syedna Qutbuddin was the maazoon but, more importantly, referred to him as ‘my beloved son’ although Syedna Qutbuddin was his half-brother. The bench was told that the 52nd Dai had never used such words for any of his brothers, and this was an indicator for those present, especially the family and spiritually learned persons from the community. Following this, they all accorded Syedna Qutbuddin the honour of reverential gestures like sajda and kissing the ground. These acts, Desai submitted, were reserved for the Dai or Dai-to-be and hence indirectly corroborated his claim of being conferred with nass by the 52nd Dai.
When the bench asked whether anyone from the community who was present during the sermon was examined during the trial, Desai replied in the negative. The court then noted, “In a civil suit, indirect corroboration has to be of such magnitude that the absence of direct corroboration (witness who heard the sermon) can be dispensed with.” Justice Patel sought to know whether the nass conferment was ever conveyed or disclosed to anyone by the 52nd Dai, to which Desai submitted that it was not.
Thereafter, the court sought to know about the doctrinal aspect of witnesses among the Dawoodi Bohra community with regard to nass and appointment of successors, and whether the stand-alone statement of Syedna Qutbuddin or indirect indication sufficed as proof of his appointment.
Desai referred to the appointment of some previous Dais and said that the sole statement of the appointee had been accepted although there were no witnesses. He submitted that in the past, both forms of appointment had been accepted by the community. He also referred to the statement of independent witness Prof Devin Stewart, professor of Arabic and Islamic Studies, Emory University, to reiterate that the appointee did not require witnesses to prove his appointment.
Desai also referred to two incidents during the lifetime of the Holy Prophet noted in Dawoodi Bohra books to show that nass did not have to be explicitly conferred upon someone and that mere indication sufficed to prove succession. The bench then sought to know more about the doctrine of witnesses in light of the insistence by Syedna Mufaddal that the witness of two men was needed to prove an appointment. Desai replied that though most ritualistic acts like nikaah needed witnesses, since the act of conferring nass was the prerogative of the Dai who was divinely inspired by the Imam uz Zaman, witnesses were not required.
However, when the bench referred to the principles laid down in the Evidence Act, Desai submitted that he would address the issue on Thursday.
